S. 5I: "inherent risk" February 17, 2016
b) Inherent risk not confined to those which cannot be avoided by reasonable care and skill by the defendant
- Secondly, his Honour confined “inherent risk” to something that cannot be avoided by the exercise of reasonable care and skill by the defendant. I respectfully disagree.
- Textually his Honour’s construction faces some obstacles. First, it involves reading additional words into the Act in order to confine words of prima facie general meaning; this amounts to a judicial gloss narrowing the legal meaning of the text. In Wallace v Kam at  the High Court cautioned against judicial glosses on s 5D; in my view s 5I is in no different position.
- Secondly, there are examples where the identity of the person performing the conduct in a “no liability” section is stated expressly. Thus s 5L refers to dangerous recreational activities engaged in by the plaintiff. Section 5M(6) requires a risk warning to be given by the defendant or the occupier of the place where the recreational activity is engaged in. Section 5M(8) restricts the operation of risk warnings where there has been a contradiction of the warning by representations made by or on behalf of the defendant. Section 5M(9) precludes the defendant from relying on a risk warning if the plaintiff was required to engage in the activity by the defendant. (Hence an operator of a recreational activity could rely on its risk warning even if a social club visited and told its members that the activity was not dangerous and compelled its members to engage in the activity.) In short, other sections appear to be drafted on the basis that where their operation is confined to conduct of a particular person, the section says so. Section 5I is not one of those sections. I acknowledge that this is in the nature of an expressio unius consideration, to be deployed cautiously.
- Thirdly, and to my mind most influentially, the reasons of the court below reflect a concern that if the “reasonable care and skill” in s 5I were not confined to that of the defendant, then there would be a sharp and unheralded change to the common law. In my respectful view, that concern was unwarranted.
- In the class of case exemplified by Mahony v J Kruschich (Demolitions) Pty Ltd, the defendant creates the initial injury and also therefore the unavoidable risk of complications in its treatment. In those circumstances, the defendant’s liability may continue even if the treatment is itself undertaken negligently. “[T]he first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury …. The original injury can be regarded as carrying some risk that medical treatment might be negligently given”: Mahony at 528-529.
- The present case is quite different. Ms Paul’s condition pre-dated Dr Cooke’s negligent diagnosis, and the relevant risk only arose after the aneurysm had been diagnosed. (Of course, Dr Cooke’s negligence did leave in place the risk of a spontaneous rupture after 2003 when no treatment was undertaken, but plainly enough that was a risk which could have been avoided, so there is no question of s 5I subtracting from Dr Cooke’s liability if that risk had eventuated.) Dr Cooke did not create the relevant risk – the occasion for Ms Paul to run (if she so chose) the risk of intra-operative rupture. That risk could not be avoided by reasonable care on the part of Dr Cooke; that risk was always present once Ms Paul developed an aneurysm. It could never materialise until it was diagnosed and Ms Paul chose to undergo surgery.
- Put simply, whether or not Dr Cooke exercised reasonable care, Ms Paul always faced the risk of intra-operative rupture if she chose to undergo surgery. Either way, the whole of the harm suffered by Ms Paul was as a result of the materialisation of the risk in 2006 she chose to run on the operating table. It is no answer to say that she would have, but for Dr Cooke’s negligence, chosen to run that risk (or for that matter a slightly different risk) in 2003. Either way, Ms Paul faced an unavoidable risk once she chose to undergo a procedure following the diagnosis of her aneurysm. That is exactly the circumstance to which s 5I applies. Her harm resulted from the materialisation of a risk which could not be avoided by the exercise of reasonable care and skill.
- It follows that the view which I favour does not detract from the well-established principle that a defendant is liable not merely for injuries caused by his or her negligence, but also for complications (whether negligent or non-negligent) from any resulting medical treatment. Mr Kirk SC gave the example of a driver whose negligence causes a pedestrian to be hospitalised needing a general anaesthetic. The unavoidable anaesthetic risk in that case is not an “inherent risk” within the meaning of s 5I, because the occasion for administering an anaesthetic was created by the defendant’s negligence. It would be inaccurate and incomplete to describe the pedestrian’s harm as resulting from the materialisation of the unavoidable anaesthetic risk. The example given by Basten JA at  of a patient being harmed by the materialisation of an unavoidable risk from treatment which the patient only underwent by reason of a negligent diagnosis is similar: s 5I would not apply because the negligence created the occasion for the materialisation of the risk. Only where, as here, the risk pre-dates and is neither created nor increased by the defendant’s negligence would the section apply. I agree with Basten JA that it is not necessary to consider how s 5I operates where negligence increases an inherent risk.
- Mr Kirk said that acceptance of this submission would, or might, amount to taking a step beyond the statements in the extrinsic materials to the effect that s 5I did not change the law. I am far from sure that that is the case; neither party pointed to any decision closely analogous to the facts of the present case (whose salient characteristic is that the delay caused by the negligence did not create or increase the risk) which would be decided differently if the construction I favour were applied. But in any event, statements in the course of the enactment of the Act do not detract from the statutory text, especially where it is clear that not all of the subtleties in this Act, which is replete with subtlety, were fully appreciated at the time. Such statements tend to be made at too high a level of abstraction, which ordinarily precludes them from being “capable of assisting in the ascertainment of the meaning of the provisions”: Harrison v Melhem  NSWCA 67; (2008) 72 NSWLR 380 at .